In response to:

My colleague and friend Robert Darnton is a marvelous historian and an elegant writer. His utopian vision of a digital infrastructure for a new Republic of Letters [NYR, February 12] makes the spirit soar. But his idea that congressional committees beholden to Hollywood might have implemented that vision is a utopian fantasy, while his description of what will happen as a result of Google’s scanning of copyrighted works is a dystopian fantasy.

At the heart of Darnton’s dystopia about the Google settlement is his view that “Google will enjoy what can only be called a monopoly…of access to information.” But Google doesn’t have anything like a monopoly over access to the information in the books that are subject to the terms of the settlement. For a start (and of stunning public benefit in itself), up to 20 percent of the content of the books will be freely available on the Internet, and all of the content will be indexed and searchable. Moreover, Google is required to provide the familiar “find it in a library” link for all books offered commercially as a result of the settlement. That is, if after reading 20 percent of a book a user wants more and finds the price of online access to be excessive, the reader will be shown a list of libraries (ordered by proximity) that have the book, and can visit one of those libraries or employ interlibrary loan. This greatly weakens the market power of Google’s product. Indeed, it is much better than the current state of affairs, in which users of Google Book Search can read only snippets, not 20 percent of a book, when deciding whether they have found what they seek.

Darnton is also concerned that Google will employ the rapacious pricing strategies used by many publishers of current scientific literature, to the great cost of academic libraries, their universities, and, at least as important, potential users who are simply without access. But the market for current scientific literature has little in common with that for out-of-print monographs. The production of scholarship in the sciences requires reliable and immediate access to the current literature. One cannot publish, nor get grants, without such access. The publishers know it, and they price accordingly. In contrast, because there are many ways of getting access to most of the books sold by Google under the settlement, rapacious pricing won’t work. The settlement requires “find it in a library” and extensive free preview, as well as a free access terminal in every public library building in the country. These features could not be more different than the business practices employed by many publishers of scientific, technical, and medical journals.

The settlement is far from perfect. The American practice of making public policy by private lawsuit is very far from perfect. But in the absence of the settlement—even if Google had prevailed against the suits by the publishers and authors—we would not have the digitized infrastructure to support the twenty-first-century Republic of Letters. We would have indexes and snippets and no way to read online any substantial amount of any of the millions of works at stake. The settlement gives us free preview of an enormous amount of content, and the promise of easy access to the rest, thereby greatly advancing the public good.

Of course I would prefer the universal library, but I am pretty happy about the universal bookstore. After all, bookstores are fine places to read books, and then to decide whether to buy them or go to the library to read some more.

Paul N. Courant
University Librarian and Dean of Libraries
Harold T. Shapiro Collegiate Professor of Public Policy
Arthur F. Thurnau Professor of Economics and of Information
University of Michigan
Ann Arbor, Michigan

To the Editors:

We applaud Robert Darnton for his measured appraisal of the promise and danger of Google’s mass digitization effort. We did however want to add a few words about authors’ rights, which seemed, as often in this discussion, to be dwarfed by the mighty interests of, on the one hand, entertainment conglomerates and, on the other, the mass readership. (We write of authors’ rights, but of course our observations apply to all the arts, to scholarship, and to other forms of individual expression.)

Until authors secured their own copyright, their fate was in the hands of benevolent or not so benevolent institutions—the church, the aristocracy, the university, the ruling party, the printing house. Autonomous copyright allows authors to benefit directly from their creative labor; it also removes powerful instruments of censorship, and it makes readers, as opposed to political agencies, the nourishers of the work they value.

Of course the system does not work perfectly, and many difficult ideas do not find sufficient support in the marketplace to sustain their creators. But only a writer or artist who has an independent income would voluntarily give up the possibility of earning a living from his or her work. As to the term of copyright, it should be remembered that few writers have viable retirement benefits or substantial savings, and royalty earnings are one of the few assets they can offer their families upon their deaths. And it often takes a lifetime for a writer’s work to find its audience; writers should be able to benefit from the growth of their reputations during their life.

Furthermore, a period of exclusive control by a literary estate after an author’s death creates the opportunity, and the financial incentive, to assemble fully prepared editions, made by specialists often informed by the author’s instructions. Once work enters the public domain, it can be published by anyone in any form, and the financing of editions requiring editorial care becomes, once again, at the pleasure of benevolent institutions rather than readers.

As those of us involved in protecting authors’ rights know, once work has been digitized, it becomes very difficult to control. In many places, and of many authors, it can be said that only a lingering affection for the book as an object sustains sales, since an author’s works are so widely available electronically. Mass digitization will profoundly affect the viability of our system of copyright, and we need to ask, as not merely a parenthetical matter, how we will support creative work and the open exchange of ideas in its wake.

Robert Darnton replies:

I wish I could be convinced by Paul Courant’s arguments, because I share his conviction that we need a digital infrastructure to support the twenty-first-century world of learning. Why then have I contracted a bad case of dystopia?

First, I worry about commercializing the content of our research libraries. True, there seems to be no alternative, because we have failed to finance large-scale digitization with public money. Google has the means, the skill, and the audacity to create a gigantic database by digitizing millions of books. I sympathize with those who say it is better that this database should exist, even if we will have to pay for access to it, than if it had never been created. What worries me is the fact that Google has no competitors.

Second, the class action character of the suit brought against Google by the authors and publishers means that no other enterprise could mount a rival digitizing operation, even if it could afford to do so, without striking deals with the copyright owners book by book, a virtual impossibility. True, this hypothetical, rival entrepreneur could attempt to cut a deal with the Book Rights Registry, which will be created to represent the authors and publishers in the execution of their settlement with Google. But the role of the registry raises a third problem. The settlement prohibits it from offering a competitor better terms than those accorded to Google. And while enforcing Google’s “most-favored-nation” status, the registry would hardly favor an attempt of a competitor to undercut Google’s prices, because by doing so it would act against the interests of the authors and publishers, who are to receive 63 percent of Google’s take. Fortified by all this protection, Google hardly need worry about competition.

Monopolies tend to charge monopoly prices. I agree that the parallel between the pricing of digital and periodical materials isn’t perfect, but it is instructive. If the readers of a library become so attached to Google’s database that they cannot do without it, the library will find it extremely difficult to resist stiff increases in the price for subscribing to it. As happened when the publishers of periodicals forced up their prices, the library may feel compelled to cover the increased cost by buying fewer books. Exorbitant pricing for Google’s service could produce the same effect as the skyrocketing of periodical prices: reduced acquisitions of monographs, a further decline in monograph publishing by university presses, and fewer opportunities for young scholars to publish their research and get ahead in their careers.

Moreover, Google’s agreements with a number of large research libraries to digitize their collections preclude those libraries from mounting their own shared database that could compete with Google. According to the agreements, each library retains its own copy (“library digital copy”) of works in its collection digitized by Google. But it does so under severe restrictions on use that prevent it both from making the digital file available for reading by its own members and from pooling these copies with those of other participating libraries in order to make them accessible to readers, either at a price or free of charge. Only Google will have control of the vast database of the libraries’ combined collections.

I also share Courant’s admiration for the indexing and searching services provided by Google, but a close reading of the settlement does not justify his enthusiasm for Google’s commitment to make 20 percent of all books freely available on the Internet. Readers will indeed be able to search the contents of books free of charge, but when the search takes them to a page, they will be able only to read that page and the two pages that precede and follow it, not any other adjoining pages. By clicking around, they can jump to more disconnected, five-page segments, but only up to a fifth of the text and, in the case of fiction, nothing in the last fifteen pages. This leap-frogging around in texts cannot be equated with serious reading. It is exactly the kind of reading many of us want to discourage among our students. It may be better than snippets, but it is no substitute for full access.

Moreover, the settlement empowers the registry to do away with the twenty-page preview, if the registry deems that the previewing hurts sales for a category of books. In this and many other details, the purpose of the settlement seems obvious: “to maximize revenues,” as it explicitly states (section 4.3(e)(iii)), not to facilitate the spread of information.

Of course, the settlement applies to nothing published after January 5, 2009, and its most important clauses apply to the enormous quantity of books that are covered by copyright and are out of print. My concern is that this stock of knowledge be made available to the public at a reasonable cost. Most publishers have digitized copies of their in-print books, and they will keep digitized copies of books they publish in the future. They will be free to make their current and future stock of books available to the public in digital form at competitive prices. But if no provision is made to prevent runaway pricing for the subscriptions to Google’s database, the settlement could restrict access to most of the literature produced in the twentieth century.

I sympathize with the executors of the estates of W.H. Auden and others who want both to preserve literary works in all their integrity and to provide an income for their authors’ heirs. Will Google select the best editions of serious works of literature? As I argued in an earlier article [“The Library in the New Age,” NYR, June 12, 2008], I worry that Google’s relevance ranking will favor inferior editions, and that Google’s commitment to algorithms excludes any concern for bibliographical rigor.

It is easy to disparage the inadequacies of Google’s digitizing—the skipped pages, mistaken volumes, and images of hands superimposed on the text. But I think that criticism is unfair. Google can correct its mistakes, and the critics fail to take account of the supreme benefit offered by Google Book Search: access to digitized versions of millions of volumes. The sheer scale and the marvelous searchability of this database promises to bring a whole world of books within the reach of readers who never had access to a great library.

Far from disputing the value of that access, my concern is to guarantee it by modifying the proposed settlement in a way that will prevent exorbitant pricing. If that cannot be done, we may all become victims of what Paul Courant and I both deplore: “The American practice of making public policy by private lawsuit,” as he correctly put it. In the end, when my dystopian temper gets the better of me, I fear that this practice will damage the world of learning by favoring private profit over the public good.